Ninth Circuit Reverses Grant of Summary Judgment to Insurer For Fortuitous Loss
July 01, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe Ninth Circuit reversed the district court's issuance of summary judgment regarding coverage for damages when the insured's plant had to be shut down due to an accident. Ingenco Holdings, LLC v. Ace American Ins. Co., 2019 U.S. App. LEXIS 10946 (9th Cir. April 15, 2019).
Ingenco operated a gas purification plant which converted raw landfill gas into usable natural gas. The final step in the purification process involved the removal of excess nitrogen from the landfill gas. The gas was directed through adsorbent beads, to which nitrogen adhered, contained within pressure vessels.The beads could not withstand the direct pressure of the landfill gas inflow. which, if untreated, could grind the beads down into dust. To reduce the force of the gas flow on the beads, a "diffuser basket" was suspended from the top of each bead-filled pressure vessel. The diffuser basket acted as a shield that prevented the full force of the incoming landfill gas from striking the beads directly.
In 2010, metal brackets securing a diffiuser basket broke. This resulted in damage to other components and an eventual shutdown of the entire facility. The plant remained idle for several months as Ingenco investigated alternative nitrogen filtration options and undertook repairs.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Chairman of the Senate Committee on Banking, Housing and Urban Affairs Calls for CFPB Investigation into Tenant Screening Businesses
December 13, 2021 —
Brian H. Montgomery - Gravel2Gavel Construction & Real Estate Law BlogSenator Sherrod Brown (D-OH), Chairman of the Senate Committee on Banking, Housing, and Urban Affairs, has written to
newly confirmed Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra, asking him to review companies in the tenant screening industry for possible Fair Credit Reporting Act violations and other violations of U.S. laws. The CFPB, for its part, has already published a bulletin alerting Consumer Reporting Agencies (CRAs) and other furnishers of consumer information that, as federal, state and local pandemic-related housing protections expire, the Bureau will be giving greater enforcement focus to these businesses’ compliance with accuracy and dispute obligations under the Fair Credit Reporting Act (FCRA) and Regulation V. While it is still unclear whether Director Chopra will direct the Bureau to investigate specific businesses flagged by Chairman Brown, the tenant screening industry will likely face increased scrutiny in the coming months, which may impact their service offerings and cause interruptions for landlords relying on these businesses and services.
There are approximately 2,000 tenant screening companies across the United States. These companies are used by landlords to better identify and perform background checks on prospective tenants. These reports typically provide a prospective tenant’s rental and eviction histories, credit score, debt-to-income ratio, and outstanding credit obligations, among other financial metrics. The reports also usually include a criminal background check, including searches of sex offender registries and other public records searches. Many tenant screening companies then use this information to provide an estimate of the risk that each tenant presents, calculated through proprietary algorithmic formulas. These reports are usually available to landlords at a cost ranging from approximately $5 to $55 per report, usually passed through to the prospective tenant through application fees.
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Brian H. Montgomery, PillsburyMr. Montgomery may be contacted at
brian.montgomery@pillsburylaw.com
Avoiding Disaster Due to Improper Licensing
February 18, 2019 —
Candace Matson - Construction & Infrastructure Law BlogIT’S NOT ENOUGH FOR A CONTRACTOR TO BE LICENSED . . . it must be properly licensed.
We are reminded of this by the recent case of JMS Air Conditioning and Appliance Service, Inc. v. Santa Monica Community College District, Bernards Bros., Inc., 30 Cal. App. 5th 945 (2018). In that case, JMS entered into an $8.2M subcontract with Bernards to install an HVAC system in a new facility being built for the District. JMS held a C-20 warm-air heating, ventilating and air-conditioning license. A year into the project, Bernards sought permission from the District to substitute another subcontractor for JMS (as required under Public Contract Code Section 4107 for listed subcontractors on public works of improvement). Among other things, Bernards contended that JMS was not properly licensed to perform that portion of the work which consisted of hydronic plumbing and hydronic boiler work. JMS countered that this work was an integral part of installing an HVAC system, and relied on Business & Profession Code Section 7059, which permits work that is “incidental and supplemental to the performance of the work for which the specialty contractor is licensed,” and a California State Licensing Board regulation which defines “incidental and supplemental” as meaning “essential to accomplish the work in which the contractor is classified.” (Cal. Code Regs., tit. 16, §831.)
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Candace Matson, Sheppard MullinMs. Matson may be contacted at
cmatson@sheppardmullin.com
Slump in U.S. Housing Starts Led by Multifamily: Economy
September 24, 2014 —
Jeanna Smialek – BloombergHousing starts slumped in August from the highest level in almost seven years, reflecting a setback in multifamily projects that are at the forefront of the rebound in U.S. real estate.
Beginning home construction fell 14.4 percent, the most since April 2013, to a 956,000 annualized rate following July’s revised 1.12 million pace that was the strongest since November 2007, the Commerce Department said today in Washington. Work on apartments and condominiums, which tends to be volatile, dropped 31.7 percent after jumping 44.9 percent in July.
As more Americans decide that homeownership isn’t for them because wage growth is slow and qualifying for mortgages remains difficult, builders have focused on putting up more rental units, which means the industry will see bigger swings month to month. The average number of multifamily units started over the past 12 months was the most since 2006.
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Jeanna Smialek, BloombergMs. Smialek may be contacted at
jsmialek1@bloomberg.net
LEEDigation: A Different Take
June 22, 2020 —
Christopher G. Hill - Construction Law MusingsThis weeks Guest Post Friday at Musings is a real treat. Sara Sweeney is a registered architect, LEED AP and GreenFaith Fellow in religious environmental leadership. Her 18-year architectural career reflects her passion and commitment to sustainable building design and stewardship of our natural environment. She is the founder of EcoVision LLC, a solutions-based research and consulting firm, grounded in sustainable design practices, environmental stewardship, and building science.
Dude
Every so often I come across a word that drives me nuts. A few years ago it was ‘Dude.’ Lately, it is ‘LEEDigation.’ It’s a new term to “describe green building litigation” coined by Chris Cheatham, a fine person and very knowledgeable attorney in construction law and a LEED AP as well. Per his definition, LEEDigation “could involve disputes arising from green building certification, could arise if a project fails to obtain government incentives or satisfy mandates for green building construction, or could simply result from improperly designed or constructed green building strategies. It all makes sense. So why does it drive me nuts?
Round Peg. Square Hole.
Although I fully understand why the term was coined, such a term keeps us in flat world, that is, the world of conventional design and construction. Designing and building to LEED standards, or rather, just designing and building sustainably in general, whether to meet a third party standard or not, is a different way than what we have been used to. Period. Whereas our conventional way is focused on first costs, and sees the building more as a commodity than the human imprint and legacy on Earth, sustainable design and building is a process which, at its best, considers the economic impacts of NOT building responsibly. It is a more holistic way of building and balances long-term costs and implications with short term costs.
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The Law Office of Christopher G. HillMr. Eyerly may be contacted at
te@hawaiilawyer.com
Modern Tools Are Key to Future-Proofing the Construction Industry
September 19, 2022 —
Guillaume Le Gouic - Construction ExecutiveThe U.S. construction industry is facing a tech revolution that’s upending the roles of skilled workers. Many traditional contractors are struggling to embrace the new technologies customers increasingly demand, while the industry struggles to attract young professionals. According to the latest
American Community Survey data, the median age of a construction worker is 41.
This is particularly concerning given the confluence of two trends: the construction industry is facing a critical workforce shortage that’s only
expected to intensify, and the workforce is aging—
NCCER is predicting around 40% are expected to retire by 2031. Industry leaders must prioritize using the latest industry solutions and innovations to modernize construction work, transform the construction industry and appeal to the next generation of contractors.
Throughout COVID-19, the construction sector experienced a higher number of workers quitting jobs as opposed to being laid off, indicating the older workforce likely took the opportunity to retire early, along
with more than three million other Americans who did the same. Currently, industry leaders are not doing enough to communicate opportunities to help shift the career perception of electrical contractors from simply being “blue collar” and un-exciting. A 2019 National Association of Home Builders (NAHB) found only
3% of people ages 18 to 25 were interested in pursuing a construction career, with most respondents noting the desire for a less physically demanding job.
Reprinted courtesy of
Guillaume Le Gouic, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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COVID-19 Response: Essential Business Operations: a High-Stakes Question Under Proliferating “Stay at Home” Orders
April 27, 2020 —
Karen C. Bennett, Katherine I. Funk & Jane C. Luxton - Lewis BrisboisAn ever-expanding number of states and local government authorities are issuing “shelter in place” or “stay at home” orders that restrict the movement of employees of non-essential businesses. These orders have prompted many businesses to question whether they qualify as “essential,” requiring employees to continue working. With substantial differences among the stay at home orders – and even potential conflicts between state and local directives – it is a matter of extreme urgency for businesses to determine whether they fall within the definition of “essential,” particularly as many of these orders include civil and criminal penalties.
Developments are unfolding very quickly, and clients we are advising are encountering law enforcement visits and threats of criminal prosecution as a consequence of decisions to stay open. As these designations are heavily fact-specific, and being revised, advance preparation and advice of counsel are essential.
Reprinted courtesy of Lewis Brisbois attorneys
Karen C. Bennett,
Katherine I. Funk and
Jane C. Luxton
Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com
Ms. Funk may be contacted at Katherine.Funk@LewisBrisbois.com
Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com
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Pennsylvania Supreme Court: Fair Share Act Does Not Preempt Common Law When Apportioning Liability
March 09, 2020 —
Mark T. Caloyer & Joelle Nelson - Lewis Brisbois NewsroomOn February 19, 2020, the Pennsylvania Supreme Court issued a long awaited opinion in the matter of Roverano v. John Crane, Inc., No. 26 EAP 2018, No. 27 EAP 2018 (Pa. 2020). The Court’s opinion is a must-read for anyone involved in asbestos litigation in Pennsylvania.
In Roverano, the Court ruled that Pennsylvania’s Fair Share Act (42 Pa.C.S. § 7102) does not preempt Pennsylvania common law favoring per capita apportionment of liability to strict liability defendants. In addition, the Court ruled that bankruptcy trusts, that are either joined as third-party defendants or that have entered into a release with the plaintiff, may be included on the verdict sheet for purposes of liability.
In this case, Mr. Roverano sued 30 defendants in strict liability and Defendant Crane filed a joinder complaint against Johns-Manville Personal Injury Trust. The case proceeded to trial against eight defendants in the Court of Common Pleas of Philadelphia County. At trial, some of the defendants filed motions in limine seeking a ruling that the Fair Share Act applied to asbestos cases. The trial court denied the motion, concluding that asbestos exposure cannot be quantified, and held that that it would apportion liability on a per capita basis consistent with the Court’s opinion in Baker v. AC&S, 755 A.2d 664 (Pa. 2000).
Reprinted courtesy of
Mark T. Caloyer, Lewis Brisbois and
Joelle Nelson, Lewis Brisbois
Mr. Caloyer may be contacted at Mark.Caloyer@lewisbrisbois.com
Ms. Nelson may be contacted at Joelle.Nelson@lewisbrisbois.com
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